Excerpt: - - ramkunwar bai's case was decided presumbly under a mistaken concession that the wife of the deceased bad a half interest in the property of the joint family consisting of herself and the deceased......the property received on partial partition by the deceased belonged to him exclusively and this entire property passed on his death; in the appeal by the accountable person, the appellate controller accepted the contention of the accountable person and directed the deletion of half share from the net principal value by his order dated 29th october, 1974. in further appeal, the tribunal, by order dated 24th december, 1975, restored the order of the asst. controller.4. the ownership in the property obtained by the deceased on partition was not shared by his wife although the deceased and his wife constituted an huf. the deceased had no son. there was thus no coparcener in his family excepting himself. the deceased was the sole coparcener in his family. speaking generally, female members.....

Judgment:

G.P. Singh, C.J.

1. This is a case stated by the Wealth-tax Appellate Tribunal under Section 64(1) of the E.D. Act, 1953, referring for the opinion of the High Court, the following question of law :

' Whether, on the facts and in the circumstances of the case, the entire property received by the deceased at the time of partial partition in his bigger HUF passed on his death '

2. The reference earlier came up for hearing before a Division Bench of this court which directed it to be placed before a Full Bench.

3. The case relates to the assessment of estate duty on the estate passing on the death of Surajmal who died on 21st June, 1971. To begin with, the deceased was a member of an HUF carrying on business in the name of M/s. Ramchandra Surajmal. The family then consisted of the deceased, his wife, Smt. Badamibai, Ramratan, the son of the deceased's brother and Ramratan's mother, Smt. Narayanibai. In 1955 there was a partial partition of the business assets of the said HUF. In that partition the deceased got a half share and the other half went to Ramratan and his mother. After partial partition, a firm bearing the name ' M/s. Ramchandra Surajmal' was constituted with three partners, namely, the deceased, Ramratan and Ramratan's mother, Narayanibai, with equal shares. The investment of the deceased in the said firm was his main asset. The deceased also acquired some movable property. Later, the deceased acquired a plot and also made some constructions on it. The deceased was assessed to income-tax in the status of an individual. In the assessment proceedings for estate duty it was contended by the accountable person that the share received by the deceased on partial partition in 1955 did not belong to him exclusively, that it belonged to a smaller HUF consisting of the deceased and his wife, Smt. Badamibai, and that the estate passing on the death of the deceased should be taxed in accordance with Section 39(1) taking the interest of the deceased in the property belonging to the smaller HUF as one-half, leaving out the other half which belonged to his wife. The Asst. Controller by his order dated 28th September,1972, held that the property received on partial partition by the deceased belonged to him exclusively and this entire property passed on his death; In the appeal by the accountable person, the Appellate Controller accepted the contention of the accountable person and directed the deletion of half share from the net principal value by his order dated 29th October, 1974. In further appeal, the Tribunal, by order dated 24th December, 1975, restored the order of the Asst. Controller.

4. The ownership in the property obtained by the deceased on partition was not shared by his wife although the deceased and his wife constituted an HUF. The deceased had no son. There was thus no coparcener in his family excepting himself. The deceased was the sole coparcener in his family. Speaking generally, female members in an HUF have no ownership in the property belonging to the family. The ownership of such a property is held by a smaller body which is called the coparcenary and in case there is only one coparcener, it is he alone who owns the entire property. It is true that for purposes of assessment of income-tax, the status of the deceased was that of an HUF as he and his wife constituted a family but different considerations prevail for finding out as to whether the entire property of the family or a share in it passed on the death of the deceased. As the entire ownership in the property vested in the deceased and as no part of it was shared by the wife who was the only other member in the family, the entire property passed on the death of the deceased within the meaning of Section 5 of the Act. The deceased being the sole coparcener had a disposing power under the Hindu law in respect of the entire property and even under Section 6 of the Act the entire property would be deemed to have passed on his death for purposes of estate duty. Section 7 which applies when a coparcenary interest in a joint family property ceases on death and Section 39(1) which lays down the mode of valuation of such interest, can apply only when the joint family property is vested in more than one person. It is only then that an interest in the joint family property ceases on the death of a coparcener and the valuation of such an interest has to be ascertained on the basis of the principal value of the share which would have been allotted to the deceased had there been a partition immediately before his death. When the entire property vested in the deceased because the deceased was the sole coparcener, there is no question of any other person getting any interest or share on a notional division immediately before his death and Sections 7 and 39 have no application to such a case. As earlier stated, the whole of the property in such cases passes under Section 5 read with Section 6. The view that we have taken is fully supported by the decision of the Allahabad High Court in CED v. Smt. Kalawati Devi : [1980]125ITR762(All) , with which we entirely agree.

5. In CED v. Rani Baku : [1983]142ITR843(MP) , which was recently decided by us, the facts were that there was a partition between the deceased and his three sons and a grandson of a pre-deceased son. In that partition the deceased's wife was not allotted any share. The partition took place after the Hindu Succession Act, 1956. It was held by us that although no share was allotted to the wife, in view of the change brought about by Section 14 of the Hindu Succession Act, 1/6th share, to which the wife was entitled, became her absolute property and that on the death of the deceased, this 1/6th share did not pass and the estate duty was leviable only on 5/6ths share belonging to the deceased. In the instant case, as the deceased had no son and as the partition was between the deceased and his nephew and nephew's mother, the wife of the deceased could not get any share. The entire property received on partition vested in the deceased solely and so the entire property passed on his death.

6. The learned counsel appearing for the accountable person placed reliance upon a Division Bench decision of this court in Smt. Ramkunwar Bai v. CED (M. C. C. No. 137 of 1976 decided on 3rd August 1977) : [1983]142ITR852(MP) (Appx. I) in support of his contention that the wife's interest in the property was half. Ramkunwar Bai's case was decided presumbly under a mistaken concession that the wife of the deceased bad a half interest in the property of the joint family consisting of herself and the deceased. This is how this decision has been explained in Smt. Rani Baku's case : [1983]142ITR843(MP) . Ramkunwar Bai's case, therefore, cannot be taken to lay down correct law. Learned counsel for the accountable person also relied upon the cases of Gowli Buddanna v. CIT : [1966]60ITR293(SC) and N. V. Narendranath v. CWT : [1969]74ITR190(SC) . These decisions relate to the question of status. There can be no doubt that for purposes of assessment of income-tax and wealth-tax the deceased and his wife constituted an HUF and could be assessed in that status. These cases decide that for constituting an HUF, it is not necessary that there must be more than one male member and such family may consist of a male member and his wife and daughters. These cases cannot be taken to decide that female members of such a family share the owner-ship in the property of the family. We have distinguished these cases on this ground in Smt. Rani Baku's case : [1983]142ITR843(MP) .

7. For the reasons given above, we answer the question referred as follows

'The entire property received by the deceased at the time of partial partition passed on his death.'